Gallun v. Wolff

Owen, J. The occasion calling for a construction of the will arises from the fact that subsequent to the execution thereof and prior to his death the testator by warranty deed conveyed his interest in the property devised, to his sister, ■devisee mentioned in the will. It is argued that this conveyance constituted a disposition of his interest in the property prior to the time of his death, and that under the provision found in the last sentence of the paragraph set forth in the statement of facts the devise lapsed and that paragraph of the will became of no further effect. We have little difficulty in reaching the conclusion that the judgment of the county court should be affirmed. It will be noted that in the paragraph under consideration the testator expressly declares his intention that “my said sister shall receive title to said property free and clear of said mortgage.” It was intended that title should be vested through the instrumentality of the will. However, the testator saw fit to vest title in the devisee by the execution of the warranty deed prior, to his death. This was not in contraven [69] tion of the devise. It was in furtherance of it. It merely accomplished before testator’s death what the will would have accomplished at his death. The transaction is quite similar to that involved in Will of Meyer, 174 Wis. 178, 182 N. W. 727, where the testatrix, after entering into a contract with her daughter and son-in-law to sell them a lot on monthly instalments, executed a will devising said lot to them absolutely on her death and directing that no further payment be required on said contract, and thereafter .deeded the lot to them and took a mortgage to secure the unpaid balance. It was held that the deed and mortgage did not operate as a revocation of the will, but the will operated upon the mortgage indebtedness, made a bequest of it, and vested absolute title to the lot in the daughter and her husband upon the death of testatrix. In the instant case the deed operated to vest title in the devisee and thereby pro tanto carried out the purpose of the testator. However, his purpose was not thereby wholly accomplished. It was his declared intention that the dev--isee should receive title to said property free and clear of said mortgage upon his death, and to that end the will directed his executor to pay the entire balance of such unpaid principal “whether owing by me or by my said sister.” The expression “whether owing by me or by my said sister” indicates an assumption on the part of the testator that the situation then existing by which the mortgage constituted a joint obligation of himself and sister might be changed before his death so that it would be owing by either him or his said sister. His intention was, however, that, whether owing by him or his sister, it should be paid out of his estate so that his sister would be vested with title to the property free and clear from said mortgage. The expression “If I shall have disposed of my interest in said property prior to the time of my death, then and in that event such devise of my interest in said property shall lapse and this paragraph of my will shall be of no further [70] effect,” evidently contemplated a disposition which was repugnant to the devise, a disposition to a third party, making it impossible for the devise to operate. By the 'Court. — Judgment affirmed.